Does FMLA require leave to care for grandchildren?

Q. The out-of-town daughter of our employee has been confined to bed rest during her pregnancy. The daughter is 24. Our employee has requested FMLA leave to be with her and take care of the grandchildren. Are we required to honor this request? —J.B.

A. Tough question. Assuming the grandmother is not raising the grandchildren, there are no leave rights for a grandparent. The FMLA requires the granting of unpaid leave for your employee’s personal medical reasons, his or her childbirth or adoption, “or for the care of a spouse, parent, or child who suffers from a serious health condition.”

A “child” for this purpose must be either under 18 or “18 years of age or older and incapable of self-care because of a mental or physical disability.” Since your employee’s daughter is over 18, a court would decide whether your employee’s daughter is incapable of self-care because of a disability.

Herein lies the problem: Does a complicated pregnancy constitute a disability? The FMLA regulations refer to the ADA regulations when determining whether an adult child is disabled. The ADA regulations don’t seem to include pregnancy as a disability, but at least one court of appeals has concluded in this context that pregnancy qualifies. The safer course would be to grant the FMLA leave.

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